Waleed Aly

Perhaps the most remarkable thing about George Brandis’ now infamous comment this week that Australians “have the right to be bigots” is that it was so unremarkable. Sure, it’s a grating soundbite, but as a matter of substance it’s entirely obvious. Of course we have a right to be bigots. We always have.

That’s the point that has been buried here. Nothing in the Racial Discrimination Act as it presently stands precludes bigotry. In fact I’ll go a step further: you’re even allowed to express your bigotry. Happens all the time. Read a newspaper. Bigoted views are published there several times in an average week.

Plenty of white people (even ordinary reasonable ones) are good at telling coloured people what they should and shouldn’t find racist.

Two things flow from this. First, that critics of the Racial Discrimination Act are simply wrong to suggest that our free speech is so curtailed that we can’t risk saying anything offensive. The courts have long made clear that the Act only contemplates serious cases. The caricature that we’re placed at the mercy of the most delicate people’s sensibilities is nothing less than a gross misrepresentation of the law.

Second, that supporters of the Racial Discrimination Act are wrong if they insist it provides anything like substantial protection against racism. I’ve copped my share of racial abuse both in public and in private, and section 18C wasn’t ever going to do a damn thing about it.

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So in the current furore, it’s worth remembering that we’re not exactly playing for cut-throat stakes. To be clear, the Abbott government’s proposed legislation really would allow for almost any racist speech you can imagine. Any “public discussion of any political, social, cultural (or) religious” matter will be exempt, no matter how boneheaded, dishonest or odious.

Precisely how it is possible to racially vilify someone without discussing a “social” matter is beyond me. But for all that, Australia will not simply explode in a blaze of white supremacy upon the repeal of these provisions (which is far from inevitable in any case).

Rather, there is something else at stake here that is much bigger than any particular legislative provision. I’m not so much concerned by section 18C or its repeal, but by the mythology on which that repeal is apparently based. Unspoken at the heart of this debate is a contest over the way race relations works in this country – and on whose terms.

That’s what struck me most about the proposed legislation. It’s just so … well, white. In fact it’s probably the whitest piece of proposed legislation I’ve encountered during my lifetime. It trades on all the assumptions about race that you’re likely to hold if, in your experience, racism is just something that other people complain about.

Subsection (3) – mostly ignored to this point – is perhaps the most subtly revealing. Earlier subsections make it unlawful to do something that is “reasonably likely” to vilify or intimidate someone on the basis of race. But reasonably likely according to whom? Who gets to decide whether something is intimidating or vilifying? Subsection (3) provides the answer.

Whether something is “reasonably likely” to vilify is “to be determined by the standards of an ordinary reasonable member of the Australian community” it begins. Fair enough. But then it adds in the most pointed way: “not by the standards of any particular group within the Australian community.” That’s code. It means, not by the standard of whatever racial minority is being vilified. Not the ordinary reasonable wog, gook or sand-nigger; the ordinary reasonable Australian. And what race is this hypothetical “ordinary reasonable member of the Australian community” meant to be, exactly?

If you answered that they have no particular race, then you’ve just given the whitest answer possible. It’s the answer that assumes there is such a thing as racial neutrality. Of course, only white people have the chance to be neutral because in our society only white is deemed normal; only whiteness is invisible.

Every other race is marked by its difference, by its conspicuousness – by its non-whiteness. White people are not non-Asians or non-blacks. They aren’t “ethnic” as the term is popularly used. If the “ordinary reasonable Australian” has no race, then whether or not we admit it, that person is white by default and brings white standards and experiences to assessing the effects of racist behaviour. Anything else would be too particular.

This matters because – if I may speak freely – plenty of white people (even ordinary reasonable ones) are good at telling coloured people what they should and shouldn’t find racist, without even the slightest awareness that they might not be in prime position to make that call.

This is particularly problematic with the proposed offence of racial “intimidation”. To “intimidate” is “to cause fear of physical harm” according to the draft Act. Now our ordinary reasonable white person is being asked to tell, say, black people whether or not they are “reasonably likely” to be fearful of physical harm. Black people – reasonable ones – might actually be fearful, but ultimately a hypothetical white person will decide that for them.

I have no doubt the Abbott government doesn’t intend this. It doesn’t need to. That’s the problem. This is just the level of privilege we're dealing with. This is what happens when protection from racism becomes a gift from the majority rather than a central part of the social pact. It’s what happens when racial minorities are required to be supplicants, whose claims to social equality are subordinate to those of powerful media outlets outraged they might occasionally have to publish an apology.

And it’s what happens when lawmakers and the culturally empowered proceed as though ours is a society without a racial power hierarchy simply because they sit at the top of it.

Waleed Aly is a Fairfaxcolumnist. He hosts Drive on ABC Radio National and is a lecturer in politics at Monash University.

323 comments so far

Top article. While my concerns have focussed on the sheer breadth of the exemption that would render almost any act of abuse or vilification immune from the legislation, the whole idea of who is a reasonable member of the community passed me by.

But how would you determine a reasonable member of the community. How can you feel like an Indigenous person or a Jew or a Croat or whoever if you have not had their personal histories? Surely, the test should be whether a reasonable Indigenous person or Jew or Croat or whoever would find the comments offensive.

Bearing in ming, if the comments were not deliberately meant to provide offence or vilification or intimidation, a genuine apology would suffice under the RDA unless the victim has suffered financial loss. And that surely lies at the heart of the issue. The Bolt case and others like it were not about gold-digging. The complainants were not looking for compensation - only for an apology. Which Bolt refused to give, despite the fact that he was factually wrong.

This legislation is appalling. It will be seen as a licence to public vilify, abuse and intimidate people on the grounds of race or ethnicity. It is not what the country stands for.

Commenter

Whyalla Wipeout

Date and time

March 28, 2014, 12:57AM

It is these types of quality articles that makes me want a YouTube like system of liking and favoriting them. This article is superb and Australia is a better place due to Waleed.

Commenter

Vlad

Date and time

March 28, 2014, 8:52AM

@ Whyalla

"The Bolt case and others like it were not about gold-digging. The complainants were not looking for compensation - only for an apology"

…but that's the point!!! They wanted an apology and the current legislation is arranged to back it up.

I don't follow Bolt or wish to, but I fundamentally agree with his right to say what he says regardless of who he may offend.

Offensive public speech needs to be combatted by smart, public and free speech - not the courts.

Commenter

Rich

Date and time

March 28, 2014, 9:19AM

"All freedoms should necessarily entail responsibilities incumbent on those who exercise those freedoms." This sentence, in this context, is right out of Orwell's 1984. The legislation is so scarily based on subjective judgements, contrary to what Aly likes to suggest, it's the absolute enemy of free speech. How is it that these days in Australia it is Right we need to look to uphold Freedom; whereas the Left has become inimical to it?

Commenter

James

Date and time

March 28, 2014, 9:24AM

+1 Vlad - Great article and good point, and hopefully the comments can get fixed up a bit too so we can get rid of some of the more trollish posts and highlight the good ones.

Commenter

AndrewJ

Location

Melbourne

Date and time

March 28, 2014, 9:31AM

@WW - they still use the notion of 'a reasonable person' with other cases in law, don't they?

Thank you Waleed - for breaking the 'abstract' down into concepts that are not too difficult for others to understand. The term 'Australian' has a lot of embedded assumptions that many never wish to recognise. You have helped bring the public debate/discussion around to where it should be.

Commenter

Jump

Date and time

March 28, 2014, 9:34AM

Rich, until Bolt came along and decided to say things that were not true about Indigenous people there was no problem with the legislation. Ditto James. It is not a right v left thing. Anthony Lowenstein was on the Drum last night supporting the amendments and he is as left-wing as they come.

As I see it, public speech that vilifies or causes deep distress on the grounds of race cannot readily be addressed by sound arguments. The first appeals to primitive emotions like tribalism and the second appeals to much more sophisticated reasoning. We evolved to instinctively follow our primitive emotions when under great stress, which is when these irrational hate speeches have the biggest impact. The rational amongst us have to get ahead of the curve and restrict the vileness to ensure that we are best prepared to deal with stress rationally and not just succumb to the dark side of our nature.

Commenter

Whyalla Wipeout

Date and time

March 28, 2014, 9:44AM

I agree WW, great article and as usual Waleed gets to the nub of the matter succinctly.

@ Rich, I disagree. Bolt just needed to be reasonably factual in his writings. If Bolt had got his facts right, and those facts were the basis of his rant, then he was free to write whatever pleased him and his reader.

Commenter

Paul01

Location

Riverina

Date and time

March 28, 2014, 9:48AM

Totally agree. I dont find the term "boy" offensive, but in Sth Africa that was a horrible thing to say to someone. I grew up Sydney as an Aussie born indian, i was called every horrible thing you could image, but the one that to this day makes my blood boil more than anything else is "Go Home".

I dont believe this present law saved anyone from copping racist abuse (even the much aggrieved white male - who by reading some of these forums are God's oppressed people), however repealing it does not make it better.

I would also like to be given a better understanding of WHY they want repeal it, other than their good mate Andrew Bolt feels bad

Commenter

steve

Location

sydney

Date and time

March 28, 2014, 10:21AM

Hi Rich, I think what you are saying has some merit. However, this does work in practice. If you, for example, go to the Daily Telegraph and try to post a comment or letter which is contrary to their ideology it will not get published (all those who say the SMH is not independent should note this, they get their opinions and criticisms published.) Same with the shock jocks, when anyone rings with a different opinion they are spoken over. ridiculed and/or cut off. There is no direct avenue for discussion and in the end the only real protection is things like18C. Waleed's article is a fantastic contribution to this while discussion.